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80 JUDICATURE Volume 88, Number 2 September-October 2004

3rown has two faces:i face of joy, hope, and theromise of equal educational

)pportunity for every child andi face of despair, hoplessness,rnd racialized educational:aste for American childrenwith darker skin.

In his Plessy dissen

by BRYAN K. FAIR Marshall Harlan sacaste here. Our Cocolor-blind and ne

wr many people, Bron v. Board tolerates classes a

of Education' is the most signifi-cant U.S. Supreme Court decision of the 20th cen-

turNy As I mark its 50th anniversars, I am filled at oncewith exuberance and frustration because Brown is vexing,like so much of .Amnerican law, appearing to give substan-tive reform with one hand only to take it away with theother.

B13wn has two faces. One is a face ofjoy, hope, and thepromise of equal educational opportnity for ever, child.The other is of continuing despair, hopelessness, andracialized educational caste for American children withdarker skin. The realiy is that constitutional amendmentsand federal statutes proscribing discrimination and assur-ing equal protection of the laws have had the most modestsubstantive impact, giving little relief from discriminationor inequality These two aspects of Brown, its promise andthe reality, remain unreconciled throughout the coumntrafter a half-ceutry of litigation.

In Brown, on the one hand, I am reminded of JusticeJohn Marshall Harlan's majestic promise in his Plessy dis-sent: "There is no caste here. Our Constitution is color-

i.Bro v.0 B rad (JJ id" ,',o yio,, 347 U.S. 54l3 1) [Brown IJ an( Br wa' v.Board oJIducacti.a.. 319 tS. 29 (1955) [Bron ll].

2. Pes' ;. ]'-miu g on, 163 U.S. 537, 559 (1896) (Haran, J., dissening).Id.

t, Justice Johnid "There is noinstitution isither knows normong citizens."

blind and neither knows nor toler-ates classes among citizens."2 Of

course, Justice Harlan was simply wrong. From the begin-ning of the American experiment, caste was extant: mas-ters, indentured servants, subdued Native tribes, andslaves defined the society. Moreover, the Crowns and mer-chants of Europe sought to exploit labor and to extractthe Americas' resources for their personal ecotomicgain. And that pattern of avarice and exploitation hascaused caste throughout every corner of the world,including the ghettoes, barrios, and slums across theUnited States and its territories. Nonetheless,Justice Har-Ian's rhetorical panache provided a place fbr the aspira-tions of those mired in caste. In his declaration of theanticaste principle, he presented a constitutional path-way up frotm and out of cumulative racial caste.

On the other hand, as I reflect on Brown's legacy I alsorecall Justice Harlan's admonition, "The white racedeems itself to be the dominant race in this countr. Andso it. is, in prestige, in achievements, in education, inwealth, and in power. So, I doubt not, it will continue tobe for all time .. "' In Jistice Harlan's declaration ofracial supremacy, I locate one of the worst traditions ofAmerican law. Harlan was not wrong here, but he did notexplain how whites had misused the law to abuse the civilrights of colored people to establish white supremacy. He

www.ajs.org JUDICATURE 81

(lid not mention the legalized theftsand government-sponsored brutalityagainst Native tribes, slaves, mulat-tos, free persons of color, Chineseand Japanese aliens, or Mexicans. Hedid not recall the links among Mani-fest Destiny, American imperialism,and white supremacy.

White supremacy could not existwithout its codification in law. Thefallacy of white superiority would beobvious without the manipulation ofthe law. White hegemony is a conse-quence of discriminatory laws, notevolution. It is now impossible toknow what might have become ofthe American experiment, absentmisuse of the law. But there are goodreasons to believe things would bequite different.

Hope and promiseOne face of Brown rests on a theory ofequal citizenship and dignity of allpersons. Brown overruled Pless y's lie,heralding a new promise of equaleduc ational opportunity neverachieved in the era of separate butequal. Brown held that separate edu-cational systems for white and coloredchildren were inherently unequal,violating the equal protection guaran-tees of the Constitution.' The Courtunderscored the importance of equaleducational opportunity in the life ofevery child and the permanent statusinjury to colored children froni state-sponsored segregation.' The Courtrecognized the implicit stamp of infe-riority imposed on colored childrenin a system that declared they wereunfit to associate with white children.Most of all, the Court imposed onschool officials an affirnative duty toremedy their constitutional viola-tions, every root and branch.' Thisaspect of Browr, reaffirms justice Har-lan's anticaste declaration.

Likewise, this face of Brown isCharles Sumner's heir As chief pro-porn of the 14th Amendment,Sumner declared his primary goal forthat amendment was to dismantleblack caste. Sunnner detested what hecalled the essence of whitesupremacy: "I am white, get away."'So, when Justice Harlan exclaimed,"There is no caste here." he was

affirming the anticaste moorings ofthe 14th Amendment so ably champi-oned by Sumner Sumner and Harlanunderstood there was no consttu-tional distinction between whitestelling colored people to get awayfrom the white sections of trains orbuses and whites telling colored peo-ple to get away From public schools.

This anticaste principle is nobleand heroic. It. pledges corrective jus-tice no matter how long delayed. Itinsists that the law can do For equal-ity what it did so effectively and longfor inequalit.

Educational disadvantageBut Brown has another prevailingaspect, repeating a pattern of Ameri-can law that is as old as the nation.The Brown Court failed to lay barethe white privilege inherent in all seg-regated school systems. whether dejure or de fiicto. The Court did notdiscuss how segregation instilledvisions of white superiority in somany children, nor (lid ii identify thecumulative educational advantagesreceived by white children attendingbetter funded, better staffed, betterequipped schools. Brown's discourserendered the cumulative educationaladvantages of whites legally invisible.Its magical language appeared to giveso much, but in the end (lid not dis-mantle educational caste for millionsof Americans with darker skin. Inaddition to ordering an end to segre-gation, the Court should haveordered every school district sponsor-ing segregation to eliminate all edu-cational disadvantage caused bysegregation policies.

This pattern has been a corner-stone of American law. Like the Dec-laration of Independence, thelanguage in Brown suggested a com-mitment to equal citizenship andequal opportunity. Yet neither hasproven available for the protectionof all Americans. Like the U.S Con-stitution, the language in Brown con-tains euphemistic clauses to disguisereal motives and compromisesregarding the sacrifice of the rightsof colored people to benefit mostwhite ruling elites. For example,although the Court trumpeted the

importance of education, it failed todeclare that every child had a finda-mental ight to educationally efl-c-tire schools. Moreover, despite theconstitutional violation, the Courtleft it to each school district to actwith "all deliberate speed.""

Like Lincoln's EmancipationProclamation, the language in Browndoes not deliver the freedom of edu-cationally effective schools to any col-ored children. And like the 114thAmendment.'s equal protectionclause, the language in Brown doesnot ensure that the law of edica-tional opportunity will extend to col-ored children on the same basis aswhite children. As with all the foun-dational docuienis of American law,Brown's spirit was muted by thoseunwilling to extend the grace of theAmerican Creed to colored children.Our rulers betrayed the Declarationof Independence, the U.S. Constitu-tion, and the 1l4th Amendment. Andthey have betrayed Brown, translatingit into constitutional oblivion andirrelevance.

Invoking ideals, not practicesI seek to re-center Brown's anticastemoorings by heralding its equal citi-zenship values. 'When I honor Brown,I invoke the great American ideals,not its practices; I invoke the Ameri-can promise and dream, not theirbetrayal. In Brown, the Courtreminded the nation that coloredchildren deserved what white chil-dren took for granted: to be treatedby the govermnent as equal citizenswith equal status and equal educa-tional opportuniv. The Court said itwas a betrayal of the Constitution totreat colored children as outsiders,

4. Brown I, 347 U.S. at 495.5. Id. at 493-94.6. Id. at 494.7. Browv. I1, ?349 UT.S. at 299); Gmr(en v. 7ouni, Sch.

Bd 391 U.S. 430, 437-38 (1968); Swann C,.haIattcWlr,,hbetg' Bd. oqf duc., 402 U.S. L. 15 (197t ).

8. B ran K Fair, The Anatomy of Anerican Cosle.t8 S. Lts U1). P'm .IL R ,v ?,817 390 '1999), cit-ing ffefjyinpg on Amnesty Bill (Ci-fil Rights Ainrnd-

aa'nt), 42nd Cong., 2d Sess. (Jan. 15 1872)(statement of Sen. Sumner), at 83.

9. [d. at 391-93.10. Brown [, 347 US. at 494: "Segregation ... mn

[p ublic schools has a detrimental efrect upon' theColored children."

11. Brown If. 3419 1.S. at 301.

82 JUDICATURE Volume 88, Number 2 September-October 2004

unfit to associate with white chil-dren. The Court said the exclusionof colored children implied theircivil inferiority, their caste.' Surel;the Court was correct that such amessage by the government is incon-sistent with the equality guarantee ofthe Constitution.

Ahen I celebrate Bivwn, I salutethe temerity of the families in all theconsolidated cases who courageouslystood with their lawyers against whitesupremacy and educational tyranny."I commend the NAXACP LegalDefense and Educational Fund andthe brave public interest lawxers whofaced down assertions of white enti-tlement. I give thanks to Charles H.Houston, Thurgood Marshall, JuliusChambers, Jack Greenberg, ElaineJones, and Ted Shaw, and all the spe-cial counsel and scholars who haveexplained why white superiority is alegally constructed myth that under-mines American nationhood.' Ipraise Brown as a repudiation of thenation's commitment to white hege-mony. I honor Brown as a landmarkvictory, knowing no amount of resist-ance can unring its tone of equaleducational opportunity

Barely a shadowNonetheless, it is inescapable thatBrown's potential to dismantle educa-tional caste in the United States hasnot been fully realized at any gradelevel. Racialized performance gapsare persistent. From early educationthrough graduate or professionaltraining, there are huge racial dis-parities in opportunities, achieve-

12. Brwn 1, 347 U.S. at 494-95.13. Brown was a collection of five cases from

Delaware, the District of Columbia, Kansas, SouthCaroli!)a, and Virginia. &ee Brow, .347 t.S at486.

14. Jack Greenberg, C S&t)Fs iN THi GO]rR'S:H-OW A DiCATEi) BAND OF tWEffRS FOUGHT FOR-;F (ixiIt Ri(aris REOU 0iN (New Ybrk: Basic

Books. 1994).35. Glenn C. Lomiy, THi. As'ATOM% OF" Ra,. IAL

INt: UALY1ri 174-204 (Cambridge, Mass,: Harvardti. Pres, 2002).

10. Oklahoma Cit, V. DodL, 1498 U.S. 237. 249-5099]).17. Frov, man v. Pitts, 503 t.S. 467, 491-92 (1992).18. Alissouri u. Jenkins, 515 U.S. 70. 98-101

,1995).19. uI. a] .Sf-9).20. Richard tnger, Siii y'srwP. 605-09 (New

York: NYU Press, i975).21. . nins, 515 U.S at 86-90.

ment, and attainment.'" School seg-regation is still a national crisis andshame. Educational opportunitydepends more on gerrvnianderedzip codes and racialized property val-ties than on capacity to learn. Manycolored children receive neither anadequate nor equitable education,leaving them with little means tocompete in the future. Moreover,modest performance gaps on stan-dardized tests are used against col-ored children to track them intosecond-caste schools or classroomsthroughout their training. And thenation's flagship colleges and univer-sities remain closed to all but a hand-ful of colored students.

Thus Browri is today barely ashadow of what it might have been.The current Rehnquist majority hasmissed no opportunity to interpretBrown in a way that abandons thesame colored children whom a unan-imous Court pledged to lift up 50years ago. The Rehnquist majorityhas made it easier for local officialsto avoid federal supervision ofschools. The Rehnquist majorityhas made it more onerous for plain-tiffs to establish links between his-toric school segregation and schoolsegregation today.'' The Rehnquistmajority has insisted that federaljudges have quite limited equitablepowers, restricted to the narrowestgrounds of a constitutional violation,with no systemic reform capaciyiAnd the Rehnquist majori has heldthat the affirmative duty to dismantlethe constitutional violation is only"to the extent practicable.""

Thus, the real meaning of Brownhas been lost in its translation by theRehnquist majority. Brown simplydoes not mean what the nationthought and celebrated 50 years ago.It does not guarantee equal educa-tional opportunity. It does not banextant racial segregation. ThatBrown s anticaste moorings have beenundervalued by the Rehnquist major-ity is especially ironic if it is correctthat, as a law clerk in the 1950s forjustice Robert Jackson, Rehnquistwrote a memo to Justice Jackson rec-ommending that the principles ofPle. should be affirmed in Bonmw. 21

Although Rehnquist has denied thatthe memo reflected his views, perhapsthe most damning proof is Brownundoing on his watch. The Rehnqnistmajority has ignored the extensiveroots and branches of segregationthat still remain, discounting theirconnection to past segregation. Andthe Court has increasingly restrictedthe affirmative duty imposed onschool officials to remedy the stamusinjury to colored children caused bysegregation.21

In the process, the Court has madeAmerican legal history irrelevant,rendering white educational privi-lege beyond serious critique or sub-stantive reform. I am quite reluctantto criticize Brown because such cri-tiques can so easily be misconstruedor misapplied. Brown was a great legalvictory against racial oppression. Itdeserves reverence and praise, even ifthe Court might have gone firther inexplaining its rationale and scope.My critique is not of the Brown deci-sion, but rather targets the sorry

judges, legislators, and school offi-cials who sought ftom the beginningto nullify its generative spirit. Ratherthan embrace Brown's transfbrmativepower, its implicit declaration againstwhite supremacy and its promise ofequal dignity, those officials sought toclose public schools, to re-route pub-lic funds to white flight private acade-mies, to delay enforcement andconstitutional compliance, and, gen-erally, to resist Brown's basic mandatefor equal educational opportunity.With so many working against Bownfor so long, it is no wonder why so lit-tle substantive progress has beenmade. Those officials have repeatedlyviolated their constitutional duty.They have stolen life opportunitiesand hopes and drcams of millions ofAmerican citizens. Many officialshave proven to be enemies of equal-ity and fairness, abusing the power ofthe law for personal gain. They havetaken a constitutional mandate andturned it against those most in needof its benefits, repeating a pattern asold as the nation.

Institutionall, the U .S. SupremeCourt deserves particular condemna-tion. By insisting on its "all deliberate

www.ajs.org JUDICATURE 83

speed" language, the Court gavealready recalcitrant officials a legalroute to ignore Brown. for almost iwodecadesY.2 By not elucidating thewhite privilege inherent in segrega-tion, the Court reified racial dispari-ties in opportunity performance,and attainment as normative. By fail-ing to declare that education is afundamental right, the indispensa-ble ingredient to the exercise of allother fundamental constitutionalrights, the Court virtually assured thepermanence of racialized educa-tional caste.

What might have beenTo understand the magnitude of theCourt's retreat, one need only specu-late briefly on what might have beenhad the Court demonstrated thesame courage as the Brown plaintiffs.The Court could have used Brown'sanuicaste principle to do so muchmore than desegregate publicschools and open such publicaccommodations as municipal parks,swimming pools, and golf courses.The Court could have imposed asimilar affirmative duty on govern-merit officials to dismantle caste forconstitutional violations in voting,employment, and housing, as well.The Court could have held that thegovernment had an affirmative obli-gation to dismantle every form ofcaste that it helped create, whereverit exists. There is no coherent consti-tutional reason to distinguish oneform of caste from the others. TheCourt could have affirmed JusticeHarlan's anticaste principle ratherthan his declaration of the normativ-ity of white hegemony. The Courtcould have stated that whitesupriemacy is not normal and that ithas had the blessings and aid of allagents of American law to thrive andwill need the same comprehensiveantidote to end.

_Again, there is another inmistak-able pattern here. just as Chief jus-tice Roger Brooke Taney closed thedoor on Americans with darker skinin Dwd Scot!,-' and as Justice HenryBrown shunned the dignity and rep-utation of colored people in Plessy,the Rehnquist majority has had the

last laugh, closing the most impor-tant door of all, resuscitating a legalregime under which colored peoplehave no rights that. whites are boundto respect and where colored peoplemust cease being the special favoritesof the law. Colored people, again,must forget the context of their lives,stay in their place, and abandontheir hopes for corrective justice andreparations. The Rehnquist majorityis not in session for such claims.

Undoing casteMy goal is to restore and reclaimBrown's anticaste moorings, remind-ing readers of the five centuries ithas taken to produce caste across theglobe." I seek to use the law to undocaste. I propose to re-assert the anti-caste principle, contextually, and touse it for as long as it takes to dis-mantle every shade of caste, even if ittakes another five centuries. I seek topersuade five members of the U.S.Supreme Court that the anticasteprinciple offers the most coherentreading of the Constitution's equal-ity guarantee. whether the axis ofcaste is race, gender, age, disability,sexual orietation, wealth, oranother common basis for invidiousdiscriminatioti. Specifically, I seek toreplace the antidiscrimination equal-ity theory with a broader anticasteequality theory.

Urilike the antidiscriminationprinciple employed by the Rehnquistmajority, which operates onlyprospectively in search of bad actors,the anticaste principle looks in bothdirections, contextually, at our pastand its legacy, assigning to all agentsof government remedial obligationsfor violating the equal citizenshipprinciple, no matter how ancient.The anticaste principle says the gov-ermnent cannot make some of usstrangers in our native land. The gov-ernment cannot render some citi-zens insiders and somne outsiders.The government cannot establishracial supremacy for Some and racialinferiority for others. And where it.has done so, it has a continuing affir-niative duty to dismantle such caste,eveiy root and branch. It has a con-stintional oi)ligatiot to lift, those

mired in caste tip from their second-class status. And when it undertakesthis constitutional duty, it cannot besaid to violate anyone's constitu-tional rights since no provision ofthe Constitution gives any persot) aright to compel the government tomaintain caste in violation of theequal citizenship principle.

The anticaste principle is counter-majoritarian, protecting coloredpeople from the tyranny of themaiority. The anticaste principle isself-executing, circumscribing gov-ernmental power to impose caste. Italso has a second face, requiring gov-ernment to undo caste of its own cre-ation. Every judge, legislator, andpublic school official is oath-boundto resist his or her worst impulses toestablish caste. And wvhen one fails,as so many have done, the anticasteprinciple compels that thoseexcluded be lifted up to equal citi-zenship immediately and fully. jis-tice Harlan was right: there is no castepermitted he're. The Constitution hasnot changed in relevant part sinceBrown. What has changed is themembership of the Court, as well asits interpretation of the Constitu-tion's equality guarantee.

The great American Creed shallremain an empty promise so long asthe nation refuses to honor the highroad offered by the majestic anticaste

moorings of Brown. And we shall notovercome, through Brown or othet-wise, until the Court replaces its inef-fectual antidiscrimination theory with

the anticaste principle. ,i

BRYAN K. FAIRis Thomas E. Skinner Professor of Lawat the University of Alabama School ofLaw. (bfair@lawoua.edu)

22. Biow'n 11 349 U.S. at 301.23. 60 U.S. (19 How) 393 (1857).24. Bian K. Fair, Nouns OF A R, X(v CwsT;

BABY-. COIOR Bi INNDN ESS AND T3-1E END OF AiFniRcA-T1VY ACTION (New York: NS iPress, 1997); BryanK. Fair, P"ass in'g Equality Thcor': 1,!d GrutterSi'ivc ltsif by 2028" in Utlliversit of Persy1va-na Symposium, Rawc lOifsp l' and the SuprenLe(Coud: itvh) Do .e Goftol ,fff'? 6 1. PA. J. CONSi.I_ (2004); Bryan K . F ir, '!akinog Edu ca.ios a C ast'.5'aoos1" 1 W/9,Orutler UWi hip idp ' Lirdw' 78 Ti..I. RI y. 1 (200A); B-ari K. Fair, Th AnatOy ofAt.o,0) (0 Caste, s pra a. 8. at 381 1999).

84 JUDICATURE Volume 88, Number 2 September-October 2004